Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited

This case involved the Australian Competition and Consumer Commission (ACCC) taking action against Australia and New Zealand Banking Group Limited (ANZ) and Macquarie Bank Limited for attempting to contravene section 44ZZRJ of the Competition and Consumer Act 2010. This section prohibits entities from engaging in conduct that manipulates a financial benchmark, with the aim of fixing the price of financial products. The banks admitted to attempting to contravene this provision, and the court was required to decide whether the proposed penalties agreed upon by the ACCC, ANZ, and Macquarie were appropriate.

The court considered various factors, including the seriousness of the contraventions, the culpability of the banks, and their cooperation with the investigation. The contraventions in question involved the manipulation of a financial benchmark for Malaysian ringgit non-deliverable forward contracts, which could have had a significant impact on businesses that settled these contracts. The court found that the contraventions were deliberate, systematic, and covert, and had the potential to undermine the integrity of financial markets.

The court also considered the particular circumstances of each bank. Both ANZ and Macquarie cooperated with the ACCC's investigations, did not contest the proceedings or the penalties, and had no prior history of contravening the Competition and Consumer Act. Both banks also improved their compliance systems and training following the contraventions.

Given these factors, the court found that the proposed penalties of $750,000 for each of the eight contraventions by Macquarie and similar penalties for ANZ were appropriate. The court held that it was highly desirable to accept the agreed penalties, as they fell within the range of appropriate penalties that might be arrived at by the proper application of the relevant principles to the agreed facts. The court referred to the principles set out in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 in determining whether to accept the agreed penalties.

The court also ordered Macquarie to pay a contribution towards the ACCC's costs in the amount of $200,000. In summary, the court found that the agreed penalties for ANZ and Macquarie were appropriate and should be imposed, taking into account the seriousness of the contraventions, the culpability of the banks, and their cooperation with the investigation.